Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5402(b)
Presumption of injury under Labor Code section 5402(b)
Presumption applies if defendant does not deny liability within 90 days of claim filing, but can be rebutted by evidence not reasonably obtainable in that period.
From the decision · page 1Applicant contends that the WCJ erred in not finding industrial injury, arguing that he was
entitled to the presumption of injury codified in Labor Code section 5402(b) because defendant
did not deny liability for injury within 90 days of applicant's filing of a DWC-1 claim form. The
WCJ found that, while the defendant did not timely deny liability, any presumption of injury was
properly rebutted by evidence not reasonably obtainable in the 90-day period. We have received
an Answer from the defendant, and the WCJ has filed a Report and Recommendation on Petition
for Reconsideration (Report).
Labor Code section 5703
Appeals Board authority to receive medical reports at any time to prove or disprove facts
Allows the Board to consider medical reports obtained after 90 days to rebut presumption of injury.
From the decision · page 2Finally, the first argument of the pending petition overlooks the power of the
Appeals Board to develop the medical-legal record regardless of the follies of
the litigants. The Appeal Board is expressly authorized to receive the reports of
attending or examining physicians at any time and use those reports to prove or
disprove any fact in dispute. Lab.C. § 5703. Defendant correctly argues that
chemical exposures are complex matters that require discovery that cannot be
reasonably completed within 90 days. Answer to Petition for Reconsideration
9/07/2023 p. 3 lines 5-22. Moreover, written reports from physicians remain the
favored mode for the production of evidence to the Appeals Board. 8 CCR
§ 10682 (WCAB Rule 10682).
8 CCR 10682
Written reports from physicians are favored evidence under 8 CCR 10682
Supports the use of medical reports obtained after 90 days in the Appeals Board proceedings.
From the decision · page 2Finally, the first argument of the pending petition overlooks the power of the
Appeals Board to develop the medical-legal record regardless of the follies of
the litigants. The Appeal Board is expressly authorized to receive the reports of
attending or examining physicians at any time and use those reports to prove or
disprove any fact in dispute. Lab.C. § 5703. Defendant correctly argues that
chemical exposures are complex matters that require discovery that cannot be
reasonably completed within 90 days. Answer to Petition for Reconsideration
9/07/2023 p. 3 lines 5-22. Moreover, written reports from physicians remain the
favored mode for the production of evidence to the Appeals Board. 8 CCR
§ 10682 (WCAB Rule 10682).